Only class I heirs under the Hindu Succession Act can claim rights to inherited property; a grandson cannot claim ownership while his father is alive.

JUDGMENT

I.A. 2205/2025 (under Order VII Ru le 11 of CPC)

The instant application is filed by defendants nos.1 and 2 for rejection of the present suit under Order VII Rule 11 of the Code of Civil Procedure , 1908 (hereinafter referred to as „CPC‟) for being devoid of any cause of action and for failure to disclose the necessary facts.

Factual Matrix

2. The present suit is one for partition, wherein the plaintiff seeks a declaration that he is the absolute owner of his 1/5^th share in property bearing No. C-76, AB, Kalkaji, New Delhi, measuring 200 sq. yds. (hereinafter referred to as the “suit property”), along with other consequential reliefs.

3. A pedigree chart describing the relation of the parties in the instant lis is given as under: -

4. Therefore, it is seen that the parties to the instant suit are all legal heirs of the Sh. Ram Lal Sethi. The plaintiff and defendant no.2 are brothers and children of defendant no.1. Defendant nos.3 and 4 are cousin brothers of the plaintiff and defendant no. 2. The said defendants are the sons of late Sh. Kulbhushan Sethi, i.e., brother of defendant No.1 and the elder son of late Sh. Ram Lal Sethi.

5. The facts on record indicate that late Sh. Ram Lal Sethi, expired on 07.12.1989, and late Sh. Kulbhushan Sethi, passed away on 08.12.2010. The suit property was originally acquired by late Sh. Ram Lal Sethi by virtue of a perpetual lease deed dated 31.08.1965.

6. It is the case of the plaintiff that in the year 1986, the late Sh. Ram Lal Sethi effected an oral partition amongst all his legal heirs, under which the suit property devolved upon his father, defendant no.1, and his uncle, late Sh. Kulbhushan Sethi. The plaintiff asserts that upon the demise of his grandfather, he became the absolute owner of his share in the suit property, being the grandson of the late Sh. Ram Lal Sethi.

7. The plaintiff further contends that the suit property constitutes a Joint Hindu Family property, and therefore, both the plaintiff and the defendants hold proportionate, undivided, and impartible ownership rights therein. According to him, despite repeated requests for partition of the property by metes and bounds, the same has not been carried out, and instead, defendant no.1 has gone to the extent of lodging false complaints against him.

8. Several other submissions have been urged, but for the purpose of deciding the present application, they are of no relevance and need not be adverted to at this stage.

9. Mr. Sumit R. Sharma, learned counsel appearing on behalf of the applicants,essentially assails the instant suit for being(i) devoid of cause of action; and (ii) barred by law.

10. Learned counsel contends that, as per the plaintiff’s own showing, a partition had already taken place in 1986, whereby defendant no.1 and his brother, late Sh. Kulbhushan Sethi, became the owners of 50% share each. Thus, according to Mr. Sharma, defendant no.1 and late Sh. Kulbhushan Sethi, acquired absolute ownership rights, rendering the suit property as self- acquired in their hands.

11. He further urges that the plaintiff cannot seek partition of his father’s self-acquired property. Reliance is placed on the decision of this Court in Birbal Saini v. Satyawati , [12024 SCC OnLine Del 9276]

12. The aforesaid submissions are vehemently opposed by Ms. Rekha Saroha, learned counsel for the plaintiff, who avers that the plaint clearly discloses a cause of action. She further avers that at this stage, the defence set up by the defendants cannot be looked into, and therefore, the suit is maintainable, while the present application deserves to be dismissed.

13. I have heard learned counsel appearing on behalf of the parties and also